Synopsis

Pro se inmate's motion for summary judgment is denied and, on the basis of the
evidence provided by defendant, summary judgment in favor of defendant is
awarded, dismissing the claim. Warning given re: excessive number of
motions.

The instant claim[1] is based on allegations
that when claimant arrived at Upstate Correctional Facility on July 20, 1999,
the medical staff at that facility "would not return claimant[‘s]
medication," and he further alleges that his medication and treatment were
discontinued "without an examination or diagnosis" (amended claim, 1st
paragraph). In the affidavit supporting this motion for summary judgment,
claimant also adds that he was informed on July 30, 1999 by Nurse Adams that
pursuant to facility policy no nasal spray is issued to level 1 inmates (Green
affidavit, ¶8). Finally, he alleges that this delay in treatment caused him
to undergo sinus surgery at Albany Medical Center over a year later, in
February 5, 2001 (id., ¶¶10,11).

In opposition to the motion, defendant has submitted the signed, notarized
affidavit of Debbie Adams, R.N., who was employed at Upstate Correctional
Facility in July 1999. She has annexed several pages of claimant's ambulatory
medical record in which she made entries relating to claimant's treatment. These
entries record claimant's repeated request for nasal spray. Nurse Adams states
that the rule in force at Upstate at that time was that Level I inmates (a group
that included claimant) were not permitted any glass or plastic medication
containers in their cells and, in addition, she states that, pursuant to
departmental policy, that the medical needs of an inmate newly transferred into
the facility must be evaluated to determine if previously prescribed medication
was still needed. A physician examined claimant on August 5, 1999 and he
requested that an x-ray be performed. Once an x-ray had been taken and a
diagnosis of chronic sinusitis confirmed, the nasal spray was prescribed. In the
interim, on at least one occasion, claimant refused alternative medication
(Sudafed) that was offered to him.

Summary judgment is a drastic remedy that should be granted only when
there is no outstanding issue of material fact (Redcross v Aetna Cas. &
Sur. Co., 260 AD2d 908, 914 [3d Dept 1999], citing to Winegrad v
New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). The Court's task has
been described as "issue finding, not issue determination," and before judgment
can be issued it must be clearly ascertained that there is no triable issue of
fact outstanding (Matter of Hannah UU, (Genevieve VV), 300 AD2d 942, 943
[3d Dept 2002], citing to Matter of Suffolk County Dept. of Soc.
Servs. v James M., 83 NY2d 178 [1994] and Sillman v Twentieth
Century-Fox Film Corp., 3 NY2d 395 [1957]). The threshold to be met is high,
as "there must be only one conclusion that can be drawn from the undisputed
facts" (Sanchez v State of New York, 99 NY2d 247, 254 [2002]). Negligence
actions, including medical negligence or malpractice claims, are rarely
appropriate for resolution by summary judgment, as they typically involve
numerous factual issues and require an assessment of whether the defendant's
actions were reasonable, which is usually difficult to decide as a matter of law
(Davis v Federated Dept. Stores, 227 AD2d 514, 515 [2d Dept
1996].

The Court's function in deciding a motion for summary judgment is to
determine if an issue exists, and in doing so, the Court must examine the proof
in a light most favorable to the party opposing the motion (Iwaszkiewicz v
Callanan Indus. Inc., 258 AD2d 776 [3d Dept 1999]). The Court of Appeals has
described the process of such a motion: The proponent of a summary judgment
motion must make a prima facie showing of entitlement to judgment as a matter of
law, tendering sufficient evidence to demonstrate the absence of any material
issues of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851,
853; Zuckerman v City of New York, 49 NY2d 557, 562; Sillman v
Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Failure to make such
prima facie showing requires a denial of the motion, regardless of the
sufficiency of the opposing papers (Winegrad v New York Univ. Med.
Center, supra, at p 853).

Only if the proponent of the motion carries this initial burden is the
opposing party required to "lay bare his or her evidence establishing the
existence of a genuine triable issue of fact" (Bouchard v Champlain
Enterprises Inc., 279 AD2d 935, 937 [3d Dept 2001], citing to
Vermette v Kenworth Truck Co., 68 NY2d 714 [1986]; see also
Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067
[1979]). If, however, the party opposing the motion presents enough evidence to
establish that it, rather than the proponent, is entitled to judgment as a
matter of law, CPLR 3212(b) empowers the Court to grant summary judgment to
either party without the necessity for a cross-motion (see e.g.Conroy
v Swartout, 135 AD2d 945 [3d Dept 1987]). There are a number of
deficiencies in the submissions made by claimant in support of his motion. He
failed to attach to his notice of motion a copy of the claim and the answer, as
expressly required by the statute (CPLR 3212[b]). "[F]ailure to include a copy
of the pleadings in the papers supporting a motion for summary judgment
‘require[s] summary denial of the motion' . . . [unless] the record is
‘sufficiently complete'" (Greene v Wood, 6 AD3d 976, 977 [3d Dept
2004], quotingWelton v Drobnicki, 298 AD2d 757 [3d Dept 2002]
and General Motors Acceptance Corp. v Albany Water Bd., 187 AD2d 894, 895
[3d Dept 1992]). In Greene (supra), the Third Department affirmed
denial of a motion for summary judgment because the moving party failed to
include a copy of one of two complaints against it.

Substantively, claimant provides no evidence other than his affidavit and his
reply affidavit in support of his motion. Although he alludes to statements made
in response to certain of his discovery demands, he has not submitted copies of
those statements in his papers. Most significantly, he does not include any
medical evidence to support his claim that he needed the nasal spray and/or that
not having it led to permanent problems that later required surgery.

Defendant, on the other hand, has submitted a statement from a facility
employee with personal knowledge of both claimant's treatment and the policies
regarding the dispensing of medication at Upstate Correctional Facility. In the
Court's view, this is sufficient evidence to establish that defendant, rather
than claimant, is entitled to judgment as a matter of law.

The following papers were read on claimant's motion for summary judgment in his
favor:

1. Notice of Motion and Supporting Affidavit of Shawn Green, pro se

2. Affirmation in Opposition of Kevan J. Acton, Esq., AAG

3. Reply Affidavit of Shawn Green, pro se

4. Affidavit of Debbie Adams, R.N., submitted by defendant

Filed papers: Claim; Answer

[1]The Court notes that this is the eighth motion
that has been brought in this action. Claimant has moved to strike certain
affirmative defenses (Motion No. M-60998), to reargue the denial of Motion
M-60998 (Motion No. M-61672), to depose a non-party witness (Motion No.
M-62554), to reargue the denial of Motion No. M-62554 (Motion No. M-63209), and
to amend the claim (Motion No. M-63110). Defendant has moved to dismiss
claimant's amended claim (Motion No. M-62628) and for a protective order with
respect to certain interrogatories (Motion No. M-63807). With the exception of
defendant's motion to dismiss the amended claim, all of these motions have been
denied. It is further noted that, in connection with the thirty claims he has
commenced in the Court of Claims, claimant has brought a total of 100 motions.
The Court repeats the observation made in another, somewhat similar
context:

It is well established that limitations on the right to access the courts may be
appropriate when it becomes clear that the courts are being used as a vehicle of
harassment by a litigant, even if the litigant is appearing pro se (see,
67A NY Jur 2d, Injunction §125, Avoidance of Vexatious or Oppressive
Litigation and cases cited therein). Limiting vexatious or oppressive discovery
is far less of an intrusion on a citizen's right to access the courts, but it
can play an equally important role in conserving both litigant and judicial
resources and in the orderly process of the Court.